Why McGunnigal v Pollock [2025] gives some much-needed clarity on cohabitation and unjustified enrichment

Family law solicitor Tom​​​​ Main considers the recent case of McGunnigal v Pollock [2025] SC FAL 15, and finds clarity on cohabitation and unjustified enrichment.

The recent case of McGunnigal v Pollock [2025] SC FAL 15 offers clarity as to the interaction between the statutory remedies available to former cohabitants under the Family Law (Scotland) Act 2006 (the 2006 Act) and the common law remedy of unjustified enrichment. It is consistent with the approach taken in the case of Pert v McCaffrey 2020 SC 259 but it provides a clearer understanding as to how unjustified enrichment claims will be dealt with in the context of family proceedings.  

This case also serves as another important reminder to family law practitioners to think about raising proceedings at the earliest opportunity to protect their client’s position, particularly if the date of separation isn’t agreed. If it is considered that a claim under the 2006 Act would be clearly time-barred, then careful thought must be given as to whether the test for unjustified enrichment is likely to be satisfied by the facts of the case. And if so, practitioners should pay attention to their drafting to ensure that there are sufficient pleadings to support this because the tests are not the same.

Background

Miss McGunnigal’s action against Mr Pollock commenced on 3 April 2020 when it was served upon Mr Pollock, the defender. The parties had previously been in a cohabiting relationship and they had three children together, all of whom were under the age of 16 at the time the action was raised. The case called before Summary Sheriff McLachlan in Falkirk Sheriff Court.

The pursuer, under section 28(2)(a) and section 28(2)(b) of the 2006 Act, sought orders for payment of £100,000 and £50,000 respectively and, as an alternative crave, sought a capital sum payment of £100,000 under the common law basis of unjustified enrichment. 

The date of separation was established as March 2019 after the court heard evidence from parties at a preliminary proof. The pursuer therefore conceded that her craves under the 2006 Act were time-barred. Following a preliminary plea on behalf of the defender on the relevancy and specification of the averments supporting the outstanding crave of unjustified enrichment, the matter was assigned to call as a debate before Summary Sheriff McLachlan.

Defender’s position

Given this debate arose from the preliminary plea tabled on behalf of the defender, it is proper to consider his position first. It was argued, firstly, that the pursuer had fallen foul of the principle of subsidiarity on the basis the pursuer had simply relied on the same averments that supported her crave for a claim under section 28, which had now been determined as being time-barred; and secondly, that the pursuer had failed to properly aver an actual loss and what was sought by the pursuer was in reality a payment that was compensatory in nature. 

In respect of the issue of subsidiarity, counsel for the defender submitted that it was readily accepted that a remedy in terms of section 28 is not a direct alternative to recompense but rather an additional remedy, thus meaning the two claims can co-exist. However, they were of the position that the two must form claims that are distinct from each other. They referenced Simpson v Downie 2013 SLT 178, which stated:

“There would be little purpose in a statutory prohibition or restriction of stale claims if a party, having fallen foul of the time bar provisions could simply pursue the same claim under unjustified enrichment.”

In respect of the second issue, namely relevancy, the defender’s counsel submitted that the pursuer had failed to demonstrate an actual loss. The defender’s counsel submitted to the court that this was crucial to an action of unjustified enrichment and highlighted that the pursuer’s averments did not narrate a loss but merely averred the basis on which she should be recompensed. The defender’s counsel advanced the argument to the court that there was no detail as to the sums paid and therefore an actual loss had not occurred.

The defender also challenged the competence of including a crave for recompense in a family action on the basis that Rule 33.1 of the Sheriff Court Ordinary Cause Rules 1993 provided an exhaustive list of what constitutes a family action and a claim of unjustified enrichment does not fall within that list. The defender’s position was that this confirmed that a claim for unjustified enrichment was a distinct and separate one, which should not be a part of a family dispute.

Pursuer’s position

Counsel for the pursuer disagreed with the defender’s submission that the pursuer was attempting to circumvent the statutory time bar and that these two claims could co-exist. In addressing the issue of relevancy, the pursuer’s counsel narrated that the essential elements of a case based on unjustified enrichment had been sufficiently pled as there were averments regarding the work undertaken by the pursuer to the defender’s properties and also the funds that had been contributed by the pursuer to the purchases of various pieces of heritable property.

It was set out that these averments, while they did not quantify specific sums, were the basis on which a claim for unjustified enrichment was valid and that the pursuer had suffered losses in the interests of the defender who had been consequently unjustifiably enriched. The pursuer’s counsel thereafter submitted that, the essential elements of the case having been sufficiently averred, the pursuer was entitled to a proof on the matter and the burden fell to the defender to establish that it was not justified for any enrichment to be reversed.

On the issue of competency, the pursuer’s counsel submitted that this would not be fatal to the pursuer’s claim progressing and, in any event, given that the claim under section 28 of the 2006 Act had been found to be time-barred, this action could proceed under the ordinary court rules. It was therefore the pursuer’s position that the case did not require to be dismissed as being incompetent.

Decision

In her judgment Summary Sheriff McLachlan, firstly in dealing with the issue of competency, noted that while Rule 33.1 does provide a list of applications or actions that are defined as a ‘family action’, she was of the view that it does not preclude a party from seeking additional remedies within the same action. On that basis, the crave for unjustified enrichment within a family action was found to be competent.

Secondly, Summary Sheriff McLachlan considered the substantive issue of the matter. She referred to the leading case of Pert v McCaffrey, which had previously considered the interplay of the 2006 Act and the common law remedy of unjustified enrichment. It was accepted by the Inner House in that case, and accepted by both parties in this case, that the starting point is that a litigant is not barred from making an application for unjustified enrichment if they have failed to make an application timeously or otherwise in terms of section 28 of the 2006 Act. Summary Sheriff McLachlan noted that, in her view, Pert did not set a new precedent and the well-established principle that recompense, being an equitable remedy, is normally one to which recourse can be had only where no other is available. Summary Sheriff McLachlan went one step further to state that “a claim based on unjustified enrichment cannot be relied upon as a direct alternative to a time-barred section 28 claim”.

Summary Sheriff McLachlan highlighted that, adopting the stance in Pert, the pursuer would not be prevented from claiming recompense based on an unjustified enrichment claim so long as she could prove a relevant claim that was entirely separate from that relied on for her section 28 claim, which was time-barred. However, given the pursuer’s claim for unjustified enrichment was pled on the basis of a section 28 claim, then it was found that the pursuer’s averments were lacking in specification to the remaining crave and the defender’s preliminary plea was sustained. The action was accordingly dismissed and the pursuer was found to be liable to the defender in the expenses of the action.

Analysis

It is worth noting briefly, for those unfamiliar with the intricacies of the law surrounding cohabitation, that any order under section 28 of the Family Law (Scotland) Act 2006 can only be made where the application for that order is not later than one year after the day on which the cohabitants cease to cohabit, as per section 28(8). Given the action was not served on the defender until 3 April 2020 and it was ultimately determined that the parties separated in March 2019, the pursuer’s craves for an order under section 28 were time-barred.

On the issue of competency, the writer agrees with the decision of Summary Sheriff McLachlan that so long as the grounds for a family action are established, it does not automatically preclude an individual from seeking a crave for something that does not appear on the list narrated in Rule 33.1 within the confines of a family action. Adopting a position where it would be automatically precluded would, in the writer’s view, lead to numerous cases whereby there were would be multiple actions ongoing with the same parties. This would not be in the parties’ nor the court’s interests. That being said, caution should of course be exercised when considering pleadings as this is not a blanket statement that encapsulates all craves and some would be deemed to be incompetent. This decision therefore does not form a precedent for a ‘free for all’. 

This judgment takes us one step further than the case of Pert v McCaffrey as it provides essential clarity to those providing advice on the law surrounding a breakdown in a cohabitation relationship and serves as a reminder of the importance of raising a claim under section 28 of the 2006 Act timeously. It also further confirms that a claim for unjustified enrichment and a claim in terms of section 28 of the 2006 Act are two distinct, separate claims. There is a key takeaway from this case which is that prior to raising an action, you must consider whether a claim in terms of the 2006 Act, a claim for unjustified enrichment or both is the most appropriate and you must have supporting, different averments for each claim. It is beyond doubt that you cannot simply rely on the same pleadings to evidence both claims. It is evident that careful consideration must be given to the facts of the case and agents must be sure to make the relevant averments to satisfy the test for unjustified enrichment, which is inherently different from the test that would need to be met for cohabitants under the 2006 Act.

Summary Sheriff McLachlan notes at para [22] that when considering “claims based on unjustified enrichment, the court is concerned with reversing the defender’s enrichment rather than compensating the pursuer for loss. In contrast, a claim in terms of section 28 is compensatory in nature and at the discretion of the court”. This is crucial to the issue here and what requires to be taken from Summary Sheriff McLachlan’s judgment is that it cannot be relied upon as a ‘direct alternative’. It does not permit litigants to simply recast matters and have ‘a second bite at the cherry’. In order for a claim to succeed in unjustified enrichment there has to be evidence of the defender having been enriched, an actual loss sustained by the pursuer and averments that there is no legal justification for this enrichment. The claim of unjustified enrichment is not compensatory in nature and it is therefore essential for the pursuer to be able to quantify and evidence their actual loss.  

As family law practitioners will be aware, the law of cohabitation desperately requires reform; however, this at least provides some clarity for practitioners when providing advice to a client on whether any claim under section 28 of the 2006 Act would require to be raised or if there are alternative remedies that may be available to the client. It serves as a good reminder to explore all available remedies with clients and ensure, prior to raising any action, that the test for each claim in its own right can be satisfied.  

Written by Tom​​​​ Main, Senior Associate, Aberdein Considine